O'Connor v. Immele

Decision Date14 July 1950
Docket NumberNo. 7159,7159
Citation77 N.D. 346,43 N.W.2d 649
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. Section 31-0103 NDRC 1943, which provides that in a civil action or proceeding by or against executors, administrators or next of kin, neither party shall be allowed to testify against the other 'as to any transaction whatever with, or statement by the testator or intestate', does not render a witness, who is not a party to the action or proceeding, incompetent to testify as to declarations made by a testator, even though such witness may have an indirect interest in the result of the action or proceeding.

2. Declarations made by a husband and wife, in the presence of each other, concerning their agreement to make reciprocal wills, to the attorney who drafted the wills, which declarations were thereafter repeated in the presence of each other and of several other persons, were not confidential communications made by clients to an attorney in the course of professional employment.

3. When a husband and wife, each having separate estates, execute simultaneous reciprocal wills, leaving his and her entire estate to the survivor and providing that the residue remaining upon the death of the survivor shall be distributed in equal shares to the husband's niece and the wife's niece respectively and there is competent credible testimony of declarations made by the husband and wife that the reciprocal wills were made pursuant to an agreement, the evidence is sufficient to, and does establish that the reciprocal wills were made in accordance with a contract.

4. Where a husband and wife execute reciprocal wills, pursuant to an oral agreement and the will of the wife remains unrevoked at the time of her death and the husband presents such will for probate and accepts its benefits, there is, in equity, a sufficient performance of the parole agreement to remove it from the operation of the statute of frauds.

5. The survivor of the parties to an agreement to make reciprocal wills may not after accepting its benefits repudiate it.

6. A will made in accordance with an agreement to make reciprocal wills may be revoked but when one party has accepted the benefits of the agreement, the contract to make the will continues in effect and may be enforced.

7. The claim of a beneficiary, named in a revoked mutual and reciprocal will, is not a claim against the estate of the testator but a claim of a property right in that estate, which is itself subject to claims against the estate.

8. Testamentary dispositions are presumed to vest upon the testator's death.

9. Where a contract to make reciprocal wills is given effect, the equitable title to the property devised and bequeathed to the beneficiary named in the revoked mutual and reciprocal will vests in such beneficiary immediately upon the death of the testator.

10. The fact that a plaintiff may have a remedy at law by an action for damages does not prevent equity from assuming jurisdiction if the equitable remedy is better adapted to render more perfect and complete justice than the remedy at law.

11. In the instant case, the existence of questions concerning the removing of a parole agreement from the operation of the statute of frauds, the impressing of a trust upon distributed property in the hands of a devisee, and of other issues, decision upon which is primarily, if not exclusively, within the jurisdiction of equity, renders any remedy at law inadequate.

12. The claim of a beneficiary named in a revoked mutual will of a property interest in the estate of the testator is not a claim against the estate of the testator which must be filed with an executor under the statute of non-claim.

13. The jurisdiction of the probate court does not extend to the determination of the rights in property left by a deceased, where such rights do not depend upon heirship or will but on contract.

14. In equity the beneficiary, named in a revoked mutual will, may enforce the contract to make the will against the devisees named in the revoking will, as well as against the personal representative of the testator.

Paul Campbell, Minot, for plaintiff and appellant.

B. H. Bradford and McGee & McGee, Minot, for defendants and respondents.

BURKE, Judge.

This is an equitable action in the nature of specific performance to enforce an alleged contract to make a will. In her complaint plaintiff alleged that, on the 5th of October 1936, Ella C. Sweeney and Daniel F. Sweeney, husband and wife, executed reciprocal wills in pursuance of an agreement so to do; that such wills were identical in their material provision in that each left to the survivor, his or her entire estate, and bequeathed and devised the residue remaining upon the death of the survivor in equal shares to Mable M. O'Connor and Frances Immele, niece of Ella C. Sweeney and Daniel F. Sweeney respectively, and provided that in the event of the death of either of the named beneficiaries, their heirs should succeed to their respective interests and take per stirpes and not per capita; that Ella C. Sweeney died on February 17, 1945, leaving an estate of the value of approximately $20,000 to which Daniel F. Sweeney succeeded under the provisions of her reciprocal will of October 5, 1936; that thereafter, on July 11, 1945 Daniel C. Sweeney revoked the reciprocal will made by him and executed a new will in which he designated his niece Frances Immele as the sole beneficiary; that on September 2, 1946, Daniel F. Sweeney died; that on September 4, 1946, Frances Immele presented Daniel F. Sweeney's will of July 11, 1945 for probate in the County Court of Ward County; that upon September 25, 1946, said will was admitted to probate and letters testamentary were issued to Frances Immele; and that Frances Immele qualified as executrix of said will and as such came into possession of all the property of which Daniel F. Sweeney was possessed at the time of his death and that Frances Immele, both as executrix and individually, has refused to recognize the contract of Daniel F. Sweeney to devise and bequeath to the plaintiff one half of the property of which he died possessed. For relief plaintiff demanded that the agreement of Daniel F. Sweeney to make a will as alleged be recognized; that she be decreed to be the owner of one half of the property of which he died possessed; that Frances Immele, both as executrix and individually be declared a trustee of such property and that she, both as executrix and individually, be required to make an accounting of all such property, including income and rents derived therefrom, and that she be required to make conveyance and payments to the plaintiff in accordance with the facts disclosed upon such accounting.

In her answer, the defendant, Frances Immele, admitted that Ella C. Sweeney and Daniel F. Sweeney had made substantially identical wills on October 5, 1936, but denied that such wills were made pursuant to any agreement or contract. For affirmative defenses, she alleged that prior to the commencement of this action the administration of the estate had been concluded and distribution thereof made in accordance with a final decree of distribution; that plaintiff had filed no proof of claim in the course of such administration and that her claim, if any, was barred by the statute of non-claim; that the district court had no jurisdiction of the subject matter of the action for the reason that issues raised by the complaint were matters of probate jurisdiction of which the county court has exclusive original jurisdiction and that plaintiff had had at all times a plain speedy and adequate remedy at law.

The trial court found and concluded that Ella C. Sweeney and Daniel F. Sweeney entered into a contract to dispose of their estates by mutual and reciprocal wills; that after Daniel F. Sweeney had received his deceased wife's estate under her will, he breached his contract by revoking his will and by executing and publishing a new will; that by breaching his contract Daniel F. Sweeney became liable to the plaintiff for the detriment caused by such breach of contract; that under the statute of non-claim plaintiff was required to present a proper proof of claim for money damages to the executrix of the will of Daniel F. Sweeney; that no such claim was presented within the time allowed by law and that plaintiff's claim is therefore forever barred and that plaintiff was not entitled to specific performance or other equitable relief inasmuch as she had had an adequate remedy at law.

In accordance with these findings and conclusions, judgment was entered in favor of the defendant for the dismissal of the action. Plaintiff has appealed from the judgment and the case is here for a trial de novo upon all the issues.

The first question is whether the reciprocal wills of Ella C. Sweeney and Daniel F. Sweeney were made in accordance with an agreement or contract to make such wills. It is undisputed that the wills in question were made at the same time and place; that at that time the testator and testatrix were each individually possessed of a substantial amount of property; that they had no children of their own, that each had heirs who were not heirs of the other and that the residuary legatees in both wills were the nieces of the testator and testatrix respectively. These facts are exceedingly persuasive of a conclusion that the wills were made in accordance with an agreement. However, since they do not exclude an hypothesis that the reciprocal provisions in the wills may have been due to a coincidental common intent, they are not in themselves sufficient evidence of a contract. The direct evidence of the existence of the contract consisted entirely of parole evidence, the testimony of relatives of the plaintiff, one of whom was an attorney who drafted the wills. All of this evidence is challenged upon the ground that it is incompetent under the 'deadman's' statute and...

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  • Kirk v. Beard, A-7857
    • United States
    • Texas Supreme Court
    • March 29, 1961
    ...et al. v. Johanson et al., 69 Colo. 400, 194 P. 943; Carmichael v. Carmichael, 72 Mich. 76, 40 N.W. 173, 1 L.R.A. 596; O'Connor v. Immele, 77 N.D. 346, 43 N.W.2d 649; Schauer v. Schauer, 43 N.M. 209, 89 P.2d 521; Minogue v. Lipman, 25 N.J.Super, 376, 96 A.2d 426; Canada v. Ihmsen, 33 Wyo. 4......
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    ...the witness is a spouse or a close relative of one of the parties. Hurby v. Romanick, 128 N.W.2d 106 (N.D.1964); O'Connor v. Immele, 77 N.D. 346, 43 N.W.2d 649 (1950); Perry v. Erdelt, 59 N.D. 741, 231 N.W. 888 (1930); Frink v. Taylor, 59 N.D. 47, 228 N.W. 459 (1930); Hampden Implement Co. ......
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    • January 12, 1960
    ...which quotes at length from Baker v. Syfritt, supra; Rastetter v. Hoenninger, 214 N.Y. 66, 108 N.E. 210, 211-212; O'Connor v. Immele, 77 N.D. 346, 43 N.W.2d 649, 653-654; Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888, 890; Auger v. Shideler, 23 Wash.2d 505, 161 P.2d 200, 204; Turner v. ......
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    ...shows sufficient performance to remove the oral contract from the operation of the statute of frauds. In the case of O'Connor v. Immele, 77 N.D. 346, 43 N.W.2d 649, we held that where the survivor of the makers of reciprocal wills, pursuant to an oral irrevocable contract, presents the will......
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